I was sitting at the breakfast table on a recent Sunday morning reading through the New York Times and came across a feature article in the business section about the nationwide battle being waged between the various states trial lawyers associations and the vast conglomeration of pro-business interests seeking to restrict injured citizens access to our Court system.
http://www.nytimes.com/2008/06/22/business/22tort.html?_r=1&ref=business&oref=slogin
This is yet another chapter in a battle that has been raging for more than 20 years as national Chamber of Commerce organizations, multi-national corporations and insurance industry insiders decided that their bottom lines would improve if they could somehow avoid costly lawsuits from people who are seriously injured when their products or actions cause harm.
Arguably, some states have had a history of wildly outrageous jury verdicts - but that was a long time in the past and certainly not in Colorado. It is also irrefutable that certain bad elements among the trial lawyers have tarnished the good work that the rest of us try to do on a daily basis. However, the fact is that the insurance industry is trying to push the bar further away from being equal and fair to all parties to the point that small people like you and me will never face a fair playing field in the event we are injured and have to sue a large corporation.
The current method of restricting your rights is to try and push for legislation to limit the amount of attorney's fees that us trial lawyers can charge when we take on a case on a contingency basis. It is a great approach. Lets face it, on the surface it sounds like it will benefit the accident victims more than anyone else. However, in reality, serious restrictions in the amount of fees charged by attorneys will severely limit injured persons' choices when hiring a lawyer.
Accident law is a business. Even us trial lawyers have to be able to make a profit on what we do. What makes us trial lawyers unique is the extremely high degree of risk that we have to assume on behalf of our clients. In nearly all accident cases, a lawyer does not get paid until and unless he or she gets a recovery for their client. If there is no recovery, then the attorney will not be paid for the hundreds or thousands of hours that they can spend working on a complex case.
Trial lawyers often spend tens of thousands of dollars from their own pockets to bring their client's cases to trial. These trial expenses can be tens of thousands of dollars on even a simple auto accident case. In large products liability cases, such as cases against drug manufacturers, the expenses can run into the millions. If a lawyer's ability to be compensated under a contingent fee agreement for assuming this risk is limited by state legislation, the simple fact is that fewer attorneys will be able to handle these types of cases on a contingency basis - and this is what the business interests really are seeking to accomplish.
The business lobby hopes that the state legislatures will start restricting the contingency percentage that an attorney can charge to the point that it is not economically viable for a lawyer to take an injury case on a contingency.
They say that we can still charge our clients an hourly fee to work on the case therefore nobody will be harmed by these types of laws. However, the reality is that very few accident victims can afford to pay an hourly fee and certainly cannot do so if they have suffered a catastrophic injury, are facing hundreds of thousands of dollars in medical care and cannot work.
I find it ironic that the business lobby is saying that we trial attorneys make too much money in a time when executive compensation packages at large corporations are going through the roof. It disgusts me to think that a CEO of a large company can make millions of dollars per year and even be entitled to million dollar buyout packages when they run their companies into the ground. How much do they really care about you and I when they plunder their employees' pension funds to support their bad business decisions yet still collect such exorbitant salaries?
Let me be clear that I, as a personal injury lawyer, certainly do have cases where I am handsomely compensated for my time. However, I also have cases where I barely break even, or even lose money. These are the risks I take. If I find I can make more money charging an hourly fee in another area of law - I will be forced to do it. I, and the other trial attorneys throughout the country will be fine regardless. The injured people will be the ones left holding the bag and nothing would make the business and insurance lobbyists happier.
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